R v Cornwell

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (re issue of certificate under s 128 subs 8 - (see transcript page 3375)

1 HIS HONOUR: In this matter the accused, Cornwell, has commenced to give evidence before the jury. An issue as arisen as to whether he is entitled to claim the privilege against self incrimination in respect of evidence that he would give as to his relationship with two of the co-accused in this trial, Diez and Lawrence. As I understand it, the accused, Cornwell, will give evidence, if he is permitted to do so without making himself liable for a prosecution for any other offence than the offence charged, that he, Diez and Lawrence, were from about January 2001 involved in the distribution of cocaine in New South Wales, that cocaine having been previously brought into the country by Diez or persons associated with him. 2 The evidence of possible involvement of Cornwell, Diez and Lawrence in the distribution of illegal drugs first came to light in conversations which the Crown sought to have admitted involving Cornwell and Diez and Lawrence and Cornwell and in respect of which it was open to the jury to conclude that those conversations contain material which indicates that those persons were involved with each other, that is Cornwell and Lawrence and Cornwell and Diez, in the distribution of narcotics which were at that time available to them. 3 As well as those conversations containing references to what the jury might find was the supply of drugs, the conversations also contain material that the jury might find was relevant to the charge before them in a more direct way, that is as to the involvement of those three persons in the conspiracy to import cocaine which is the subject of the charge. To some extent the different types of material in the conversations are intertwined. I admitted the evidence of conversations suggesting that Cornwell and Diez and Cornwell and Lawrence were involved in the distribution of drugs on the basis of the principle set out in Harriman v The Queen (1989) 167 CLR 590. I do not intend to indicate again why I believe that this evidence was highly relevant to the Crown case. 4 In the course of the debate about whether, if Cornwell gave evidence, he could claim privilege against self incrimination in respect of any question the answer to which would tend to suggest that he was involved in criminal offences other than the offence charged, the question arose as to whether s 128 of the Evidence Act applied. That section concerns the circumstances in which a witness can claim the privilege and the response of the court to such a claim. The section empowers a court, where it is in the interests of justice to do so, to require the witness to answer the question, notwithstanding the claim, but to provide the witness with a certificate protecting the witness from use later being made of the answer given to the question to which objection is taken. 5 Subsection 128(8) provides:

(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. 6 This subsection gives rise to a consideration of what is a "fact in issue" in a criminal trial. The Crown submitted that evidence as to the involvement of Cornwell in the supply of drugs was a fact in issue such was its importance to the proof of the offence charged. I do not agree. The term, "fact in issue" is not defined in the Dictionary of the Act or anywhere else in the Evidence Act . However it is a term that features in a number of sections of the Act not the least being s 55, the section dealing with relevance of evidence. I also note, without attempting to indicate all of the sections in which that phrase is used, that it also appears in s 94 of the Act, the section dealing with the application of the Part dealing with tendency and coincidence. I shall return to that section shortly. 7 In a note in its Report Number 26 Volume 1 at paragraph 641 note 3 The Australian Law Reform Commission stated:

"The expression "fact in issue" should be interpreted as referring to the issues in the proceedings defined by substantive law and pleadings and thus would extend to facts to be proved in undefended or ex parte proceedings." 8 In my view a fact in issue in a criminal trial is any matter that must be ultimately determined by the jury in order to decide whether or not an accused person is guilty of the offence charged. A fact in issue in a criminal trial would generally be an element of the offence charged but might include any other matter that must be determined in order to find the accused criminally liable for that offence. It may include the issue of mental illness, self defence, or any statutory defences and, in a charge of murder, issues such as provocation and substantial mental impairment. They are examples of the fundamental issues that the jury must resolve in order to determine the charge brought by the Crown against the accused. 9 I respectfully agree with the view expressed by Odgers in Uniform Evidence Law (5th Ed, Lawbook Co) at [1.3.80] that a fact in issue is not any fact in dispute in the proceedings. It does not include those factual disputes the resolution of which may merely assist the jury in determining whether the accused has committed the offence charged. This is so regardless of how probative or significant the fact might be to either the Crown case or the accused's defence of the charge. A fact does not become a fact in issue simply because of the way that the case is conducted by the Crown or the accused. It seems to me that, generally speaking, a court would be able to determine what was a fact in issue for a particular criminal proceeding without understanding the nature of the Crown case or the defence to it. 10 This is made clear by the reference to the term in s 94. That section is as follows:

94 Application (1) This Part does not apply to evidence that relates only to the credibility of a witness. (2) This Part does not apply so far as a proceeding relates to bail or sentencing. (3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person, or (b) a tendency that a person has or had, if that character, reputation, conduct or tendency is a fact in issue. 11 In order to determine whether Part 3.6 applies, and whether the tendency rule and the coincidence rule have any application, it is necessary to know whether the character, reputation, conduct or tendency of a person is a fact in issue in the proceedings. Because it is necessary for the party wishing to tender evidence falling within the tendency or coincidence rules to give reasonable notice of its intention to do so, there must be some understanding of what will be a fact in issue in advance of the proceedings. The question whether the Part applies and, therefore, the rules operate to exclude otherwise relevant evidence cannot depend upon the manner in which the proceedings are conducted by the parties. The character, reputation, conduct, or tendency of a person is a fact in issue only where any of those matters have to be determined in order to resolve the proceedings before the court. This is consistent with the view adopted by the Australian Law Reform Commission, see Report No 26 Vol 1 paragraph 786. Odgers cites examples of proceedings where such a matter might be a fact in issue, see at [1.3.6480]. 12 I believe that this view is supported in the judgment of the High Court in Smith v The Queen (2001) 206 CLR 650. The Court was there concerned with the relevance of evidence given by police officers purporting to identify the accused in security photos taken during an armed robbery. In the course of their joint judgment, their Honours Gleeson CJ, Gaudron, Gummow, and Hayne JJ stated (footnotes not included):

[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. 13 It seems to me that the reference to the "ultimate issues" is a reference to the facts in issue for the purposes of the Evidence Act . Earlier their Honours noted that the Crown case was that the appellant was the person who was shown in the security photographs, apparently keeping lookout while the co-offenders took the money. The joint judgment then states:

[4] It was, therefore, a fact in issue on the trial of the appellant whether the appellant, the person standing trial, is the person depicted at the right-hand side of some of the security photographs. 14 As it was an element of the offence charged that the accused was a participant in the robbery (that is, that it was his act), and as the Crown sought to prove that element by identifying the accused as the person in the photograph, it is understandable that the Court should refer to the issue of identification as a fact in issue. Clearly this is an example of those cases where it would be appropriate to refer to a particular disputed factual matter as a fact in issue because the resolution of that fact will itself resolve a fact in issue. In other words, the particular factual dispute is synonymous with the relevant fact in issue. 15 In the present matter, I am firmly of the view that the issue whether the accused, or any one of them, were involved at the time of the alleged importation in the trafficking of narcotic goods is not a fact in issue. It is not an ultimate fact for the jury to resolve in order to find the charge of importation proved. It is simply a fact, which the Crown contends, is relevant to a fact in issue, being the participation of the accused in the conspiracy alleged. This finding leads me to the view that s 128(8) has no application in the present case, in so far as questioning of Cornwell in relation to his involvement in the supply of cocaine is concerned. 16 In my view, the accused Cornwell is entitled, notwithstanding s 128(8), to refuse to answer a question on the ground that the answer may incriminate him in relation to his involvement in the ongoing distribution of narcotic goods at or about the time of the alleged conspiracy. In particular, he is entitled to refuse to answer questions as to his relationship with other accused, in this case Diez and Lawrence, with regard to the distribution of drugs that were at the time in his possession or in the possession of some person associated with him. 17 He is not, of course, entitled to refuse to answer questions in relation to the importation of 120 kilograms of cocaine on The Flaning or any other importation of drugs being considered by him at the relevant time. Notwithstanding that the two matters are to some extent intertwined, that is his involvement in the ongoing supply of drugs and his involvement in a conspiracy to import drugs, they are separate and distinguishable. The Crown sought to put the evidence of drug supplying before the jury in support of the charge of importation. The accused should be able to put forward his defence to that charge without putting himself at risk of being prosecuted for other serious criminal activity. 18 The question then arises as to whether in respect of any question as to his involvement in the distribution of drugs with Diez, Lawrence or anybody else at the relevant time, the accused should be required to answer the question asked of him either in-chief or in cross-examination and either by the Crown or by any other accused. This question is answered by a consideration of whether it is necessary in the interests of justice to require him to answer the question. If it is, the consequence is that Cornwell is to be given a certificate. 19 It seems to me that the balance has to be struck as between different interests involved in the interest of justice. There is the interest in having a relevant matter being fully ventilated before the jury. There is the interest of the accused Cornwell in being able to place his defence fully before the jury notwithstanding that answers given by him might implicate him in other criminal activity of a serious nature. There are the interests of the co-accused in having a fair trial free from prejudicial evidence that is not strictly necessary for the jury to have in order to determine the offence before them. I have to take into account the interest of justice in so far as it involves a fair trial for both Diez and Lawrence in light of the evidence that Cornwell would give, if he were required to do so. 20 One of the matters that seems to me to be highly relevant is the fact that evidence of the involvement of Diez and Lawrence in the business of drug trafficking is already before the jury. In my view, a jury could well find that both Diez and Lawrence were involved in the business of supplying drugs already in the country at the time of the conversations which have been played to them. It seems to me that the inference of their involvement with Cornwell in the supply of drugs arising from those conversations is very strong indeed, if not overwhelming. 21 It is clear, and this is the basis upon which I admitted the evidence, that if the jury find that the conversations do relate to the supplying of narcotic drugs, that supply had been on foot for a considerable period of time. These are not conversations relating to an isolated, insignificant supply of drugs. The amounts of money talked about, the various people to which reference is made, what they have and what they do not have, what they are doing in relation to the business in which Lawrence and Cornwell were involved all seem to me to indicate a substantial venture in the supply and distribution of drugs at the relevant time. 22 The other matter that I take into account is that Cornwell apparently will give evidence that might implicate Diez in a very significant way in the importation charged. As I understand it, Cornwell will give evidence that Diez approached him and spoke to him about Cornwell becoming party to receiving the drug when it arrived from overseas. The amount of drug was thought to be in the vicinity of 125 kilos. Cornwell, as I understand it, will give evidence that the conversations, which have been played to the jury and which involve himself and Diez and himself and Lawrence, do in fact relate to, in part at least, the importation of cocaine and the jury could conclude that it is the cocaine which is the subject of the charge. 23 As I have already indicated, it is open to the jury to come to that view in any event because of the nature of the things spoken about in those conversation. But it seems to me that the evidence, which Cornwell might give, is on one view highly prejudicial to Diez and Lawrence, and flows simply from the fact that a co-offender has taken the decision to give evidence in his own defence and by doing so to implicate his co-offenders in the offence charged against him. That is not an unusual situation in joint trials and, generally speaking, courts do not grant separate trials because of the fact that the defence is one that is generally referred to as "cut-throat". 24 The other matter which seems to me to be relevant, although not relied upon necessarily by Lawrence's counsel Mr Waterstreet, is that it would be far fairer for Diez and Lawrence to be able to cross-examine Cornwell fully as to the allegations he makes against them, both as to their involvement in the conspiracy and their involvement in activity at the time of the conspiracy, rather than to be met with a partial cross-examination because Cornwell relies upon the privilege and refuses to answer questions asked of him on particular topics. 25 All of these matters have to be weighed up by me when considering whether it is in the interests of justice in the circumstances of this particular trial and the circumstances of the evidence that is placed before the jury and what they might make of it and what conclusions they may draw from it in support or against the Crown case that Cornwell should be required to answer questions and receive the benefit of a certificate if the privilege is maintained. 26 The Crown has indicated that it has no submissions to make in respect of that matter. The Crown has taken the view that I am wrong in permitting Cornwell to rely upon the privilege in respect of conversations involving the ongoing distribution of drugs between him and Diez and him and Lawrence. 27 In those circumstances, it is my present opinion that, if Cornwell refuses to answer questions about his involvement in the ongoing supply of drugs on the grounds that it might incriminate him, he is entitled to take that stance, but in the interests of justice I would require him to answer the questions and grant him a certificate in accordance with the section. **********

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